Full Judgment Text
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CASE NO.:
Appeal (civil) 4263 of 1999
PETITIONER:
SYNDICATE BANK
RESPONDENT:
GENERAL SECRETARY SYNDICATE BANK STAFF ASSOCIATION & ANR.
DATE OF JUDGMENT: 25/04/2000
BENCH:
S. SAGHIR AHMAD & D.P. WADHWA
JUDGMENT:
JUDGMENT
2000 (3) SCR 285
The Judgment of the Court was delivered by
D.P. WADHWA, J. Appellant Bank was granted leave to appeal under Article
136 of the Constitution against judgment dated September 11, 1998 of the
Division Bench of the Karnataka High Court in writ appeal upholding the
order of the learned single Judge dismissing the writ petition. In the writ
petition the Bank had challenged the Award of the Central Government
Industrial Tribunal ’Tribunal’ for short) dated September 26, 1994. By the
Award the Tribunal had directed the Bank to reinstate D.K. Dayananda, a
clerk working in the Cottonpet Branch of the Bank. This is what the
Tribunal directed by the Aiward :
"The order of II party (Bank) as per Ex. M. 16 is set aside. The II party
(Bank) is directed to reinstate the I party (Dayananda) forthwith with
continuity of service. No back wages. Calculated upto the date of
reinstatement, the I party (Dayananda) is not entitled to earn increments
for the period during which he had not worked. Reference accepted in part
accordingly."
Cause of Dayananda, the workman was taken by the first respondent. The
Award arose out of following question, which was referred to the Tribunal
for adjudication :
"Whether the action of the management of Syndicate Bank in terminating the
services of Sri D.K. Dayananda, Clerk Cottonpet Branch of Syndicate is
justified? If not, to what relief the workman is entitled to?"
We may now narrate the circumstances which led the Central Govern-ment to
make the reference of the industrial dispute aforesaid.
In 1975 Dayananda was appointed as Clerk-cum-Typist on probation in the
Bank. Subsequently he was confirmed. In November, 1983 he was transferred
to Cottonpet Branch of the Bank where he was to joint his duty on or before
April 3, 1984. He was relieved from the Branch where he was working, on
March 31, 1984 on his transfer to Cottonpet Branch. From April 1, 1984 to
December, 1985 out of 628 working days Dayananda worked only for 46 days.
Dayananda did not report for duty on April 3, 1984. On June 4, 1984 Bank
sent him a registered notice advising him to report for duty within three
days and also requiring him to submit his explanation for his unauthor-ised
absence. Dayananda sent a leave letter requesting to treat his absence as
leave on health grounds and he assured he would report for duty on July 11,
1984. He did not do so. On July 9, 1984 Dayananda sent his resignation from
the Bank. His resignation was accepted on August 27, 1984. Subsequently
Dayananda withdrew his resignation and requested the Bank to allow him to
continue in the service on humanitarian grounds. This was accepted by the
Bank by letter dated December 3, 1984 subject to certain conditions with
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which presently we are not concerned. Dayananda then joined the Cottonpet
Branch of the Bank. He attended duty up to December 22, 1984 and thereafter
he absented. Afterwards he applied for leave from December 23, 1984 to
January 5, 1985. Bank sent Dayananda a notice to attend his duty. In reply
he requested for grant of further leave. Dayananda attended duty from April
1, 1985 to April 6, 1985 and then again absented himself. He applied for
leave up to May 27, 1985. The leave was not sanctioned by the Bank and he
was communicated of the decision. Still Dayananda did not report for duty.
On May 16, 1985 Bank sent a notice to Dayananda about his unauthorised
absence. On November 19, 1985 the Bank invoked Clause 16 of the IV
Bipartite Settlement between the Management of the Bank and the employees.
Now the Bank called upon Dayananda to show cause for his continued absence
and to report back for work by December 19, 1985 failing which he would be
deemed to have been voluntarily retired from the services of the Bank for
his continued absence from April 8, 1985. This notice was sent by
registered post to Dayananda but it was returned with the report of the
postal authority that he refused to receive the same. This Clause 16 of the
Bipartite Settlement we reproduce:
"Where an employee has not submitted any application for leave and absents
himself from work for a period of 90 or more consecutive days without or
beyond any leave to his credit or absents himself for 90 or more
consecutive days beyond the period of leave originally sanctioned or
subsequently extended or where there is satisfactory evidence that he has
taken up employment in India or the management is satisfied that he has no
present intention of joining duties, the management may at any time
thereafter give a notice to the employ-ee’ s last known address calling
upon the employee to report for duty within 30 days of the notice, stating
inter alia, the grounds for the management coming to the conclusion that
the employee has no intention of joining duties and furnishing necessary
evidence, where available. Unless the employee reports for duty within 30
days or unless he gives an explanation for his absence satisfying the
manage-ment that he has not taken up another employment or avocation and
that he has no intention of not joining duties, the employee will be deemed
to have voluntarily retired from the Bank’s service on the expiry of the
said notice. In the event of the employee submitting a satisfactory reply,
he shall be permitted to report for duty thereafter within 30 days from the
date of the expiry of the aforesaid notice without prejudice to the Bank’s
right to take any action under the law or rules of service".
By order dated December 19, 1985 by virtue of Clause 16 of the Bipartite
Settlement as aforesaid the Bank treated Dayananda as having voluntarily
abandoned his services. This order of the Bank was similarly sent to
Dayananda under registered cover but was returned with the endorsement of
the postal authority "not found during delivery time". Matter rested at
that for three years. In September, 1988 Dayananda gave representation to
the Bank for joining duty. He was told that he had abandoned his services
with effect from April 8, 1985 and there was no question of his now joining
the duty. Industrial dispute was raised by the first respondent which led
the Central Government to make the reference to the Tribunal for
adjudication.
Both the parties filed their respective statements of claims before the
Tribunal. While Bank examined its Manager as its witness, Dayananda
appeared for himself. During the course of evidence of the Manager of the
Bank relevant registered covers and the notices sent to Dayananda were
brought on record. In his statement Dayananda, however, said that he did
not receive the first notice which was returned with the endorsement
"refused". It is not disputed that on both the registered covers correct
address of Dayananda was given. However, Tribunal was of the view that
since the Bank did not examine the postman that Dayananda in fact refused
to receive the notice, it could not be said that there was service of
notice to Dayananda. From this Tribunal was of the view that the Bank could
not under these circumstances invoke the provisions of Clause 16 of the
Bipartite Settlement and on that score along reinstatement of Dayananda had
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to be ordered. Then relying on a decision of this Court in D.K. Yadav v.
J.M.A. Industries Ltd., [1993] 3 SCC 259 the Tribunal took the view that
since no inquiry was held by the Bank before terminating the services of
Dayananda the action of the Bank was illegal. By this Award Tribunal though
directed reinstatement of Dayananda with continuity in service, it declined
to grant him further relief like back wages. Why the Tribunal did so can
gather from paras 13 and 14 of the Award, which we reproduce :
"13. The Ld. Counsel for the I party (Dayananda) stressed that 1 party
(Dayananda) is entitled to back wages. Once the I party submitted his
resignation which was accepted by the II party (Bank). Resignation letter
Ex. M.4 shows that he wanted to take up self employment and start
departmental stores. In view of the representation made by the I party, the
II party recalled him to duty on humanitarian grounds. It is clear
from the material on record that the I party has worked only for 46 days
from 1.4.84 to 19.12.85. He was continuously absent from 8.4.85 without
obtaining leave, though his leave was refused. This notice Ex. M.10
intimating the I party that his leave was rejected has been served on the I
party. The I party stated that he met with an accident and he was
continuously ill. He has not placed any convinc-ing material to prove this.
14. The Nationalised Banks have been working under loss. The unsatisfactory
conduct of I party cannot lose sight off. Against the background of Ex. M.4
it is highly probable that I party workman was not without any employment
all these days. If the first party is granted back wages, in my opinion, it
will amount to repairing penurious Peter to pay prosperous Paul."
Now the Bank was aggrieved. It filed a writ petition under Article 226 of
the Constitution in the High Court of Karnataka which, as noted above, was
dismissed by the learned single Judge by order dated June 25, 1998. Learned
single Judge observed it was not in dispute that the worker had absented
and within a span of 620 days he had worked only for 46 days and further
the worker had not been able to establish that he had any justifiable cause
for his unauthorised absence. Dayananda had not even pleaded that he had
sought any leave for his absence. Also relying on the decision of this
Court in D.K. Yadav’s case learned single Judge held that since no inquiry
was held before terminating the services of the workman Award of the
Tribunal could not be interfered. Learned single Judge deprived the workman
of continuity of service, which had been granted by the Tribunal. What
weight learned single Judge can be seen from paras 5 and 6 of his judgment,
which we quote :
"5. The question looms large in this case is that the worker did not attend
the office. But it was incumbent on the Management in such cases to have
issued a notice to the worker and conducted an enquiry. Merely on the
assumption that the notice was refused by the worker, they cannot forgo the
requirement of the enquiry, as held in the decision referred to supra.
Likewise, at the same time, one cannot forget that there are certain
circumstances which indicate that the worker has indicated that he was not
interested in the job. The application he submitted for availing of loan is
one such circumstance. If, as a matter of fact, he had applied for loan and
that was granted, it means that the worker had impliedly expressed his
intention not to continue his job. One does not know what exactly happened
to his application and whether his loan was granted to start a Departmental
Store. But we find that thereafter he tendered his resignation which was
allowed to be withdrawn conditionally. That means, the employer has tacitly
condoned the absence of the worker. This is also circumstance to be kept in
while examining the scope of the plea of unauthorised absence. All these
facts should have been brought out in evidence by conforming the witness by
the employer either before the Tribunal or at the domestic enquiry. In the
absence of such materials one cannot infer that there was an intention
express or implied expressed by the employee to abandon the employment. In
these circumstances, the Tribunal was justified in holding that the
termination of services is not justified.
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6. This takes us to the question as to what should be the relief to be
granted. The worker was awarded the relief of reinstatement besides
continuous service. Certainly this part of the award call for modifi-
cation. If the worker is to be reinstated with continuous service,
practicality he loses nothing. Back-wages cannot be awarded, as there is
some evidence that he would have been otherwise employed. It is a case
where the reinstatement should be ordered without back-wages. There is no
gain saying that the absence was unauthorised. Taking into account all the
circumstances, I feel the proper order would be to direct the Management to
reinstate the worker. The worker will not be entitled to any wages for the
period from the last date of absence i.e., from 3.4.1984 till the date of
the award. Besides he will not be entitled to continuity of service for the
period from 1.4.1984 till the date of award of the Industrial Tribunal.
While fixing the wages on reinstatement he will not be entitled to count
any increments or wages earned for the period from 1.4. 1984 till the date
of the award, i.e., 26.9.1994. He will earn the increment only from
26.9.1994 the previous increment being awarded to him on or before
1.4.1984." Learned single Judge noticed that Dayananda was being paid wages
from September 26, 1994 under Section 17-B of the Industrial Dispute Act,
1947 and that that amount may be set off against the wages payable to him
as if he was reinstated on September 26, 1994. To this extent the Award of
the Tribunal was modified.
Still dissatisfied the Bank went in appeal before the Division Bench of the
High Court. The Division Bench did not go into the merits of the case and
just by referring to the judgment of the learned single Judge dismissed the
appeal. That is how the matter is now before us.
Mr. V.R. Reddy, learned senior advocate for the Bank, submitted that it
could not be said that action of the Bank under clause 16 of the Bipartite
Settlement was in any way wrong. He said rules of natural justice were
inbuilt in clause 15 of Bipartite Settlement and law laid by this Court in
D.K. Yadav’s case was not applicable. In D.K. Yadav v. J.M.A. Industries
Ltd., [1993] 3 SCC 259 the workman was intimated that he had willfully
absented from duty continuously for more than eight days without leave or
prior information or intimation or previous permission from the management
and, therefore, "deemed to have left the service of the company on your own
account and lost your lien and the appointment with effect from December 3,
1980". This was based on Clause 13(2)(iv)2 of the Certified Standing Order
of the company. It was contended by the workman that despite his reporting
to duty on December 3, 1980 and everyday continuously thereafter he was
prevented entry at the gate and he was not allowed to sign the attendance
register. His plea was that he was not permitted to joint duty without
assigning any reason. Labour Court found that the workman had failed to
prove his case and that the action of the management was in accordance with
the Standing Orders and it was not a termination nor retrenchment under the
Act and that in terms of
2. Clause 13(2)(iv) Standing Order read thus :
"if a workman remains absent without sanctioned leave or beyond the period
of leave originally granted or subsequently extended, he shall lose his
lien on his appointment unless :
(a) he returns within 8 calendar days of the commencement of the
absence of the expiry of leave originally granted or subsequently extended
as the cases may be; and
(b) explains to the satisfaction of the manager/management the reason
of his absence or his inability to return on the expiry of the leave, as
the case may be. The workman not reporting for duty within 8 calendar days
as mentioned above, shall be deemed to have automatically abandoned the
services and lost his lien on his appointment. His name shall be struck off
from the muster-rolls in such an eventuality. the Standing Orders workman
lost his lien on his appointment and he was not entitled to reinstatement.
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From the Award of the Labour Court matter came to this Court under Article
136 of the Constitution. There could not be automatic termination under the
Certified Standing Orders on absence without or beyond the period of
sanctioned leave for more than eight days. This Court said that the
principle of natural justice and duty to act in just, fair and reasonable
manner must be read into the Standing Orders. So the termination under the
Standing Orders without holding any domestic enquiry or offering any
opportunity to the workman was held to be violative of the principles of
natural justice. This Court observed :
" 12. Therefore, fair play in action requires that the procedure adopted
must be just, fair and reasonable. The manner of exercise of the power and
its impact on the rights of the person affected would be in conformity with
the principles of natural justice. Article 21 clubs life with liberty,
dignity of person with means of livelihood without which the glorious
content of dignity of person would be reduced to animal existence. When it
is interpreted that the colour and content of procedure established by law
must be in conformity with the minimum fairness and processual justice, it
would relieve legislative callousness despising opportunity of being heard
and fair opportunities of defence. Article 14 has a pervasive processual
potency and versatile quality, equalitarian in its soul and allergic to
discriminatory dictates. Equality is the antithesis of arbitrariness. It is
thereby, conclusively held by this Court that the principles of natural
justice are part of Article 14 and the procedure prescribed by law must be
just, fair and reasonable."
This Court held :
"Therefore, we hold that the principles of natural justice must be read
into the Standing Order No. I3(2)(iv). Otherwise it would become arbitrary,
unjust and unfair violating Article 14. When so read the impugned action is
violative of the principles of natural justice."
At this we may as well refer to other judgments cited at the Bar.
In Hindustan Paper Corporation v. Pumendu Chakrobarty and Others, [1996] 11
SCC 404, respondent workman was an employee of Hindustan Paper Corporation
on January 5, 1989 passed an order invoking the Rule 23(vi)(E)4 of its
relevant Rules, which was to the effect that the workman deemed to have
lost his lien on his appointment with the Corporation. Workman on May 27,
1988 applied for causal leave. Next day an FIR was lodged against him and
others under Section 302/201 read with Section 34 IPC. On June 3, 1988
workman after expiry of the casual leave sent an application for earned
leave for 11 days giving reason "personal affair" and mentioning his leave
address other than what was with the Corporation. On June 6, 1988 Senior
Manager of the Corporation received a message from the police to direct the
workman to report to the police station. Police was informed about the
application of the workman for grant of earned leave. Thereafter the
workman sent series of leave applications up to November, 1988 without
caring to find out whether his previous applications for leave had been
sanctioned or not. Initially the workman did not disclose any reason for
his absence and subsequently he mentioned "on medical grounds". He did not
send any medical certificate and did not disclose his leave address. All
this time Corporation was being approached by the police to inform them the
whereabouts of the workman as he was an accused in a murder case. On
November 30, 1988 Corporation informed the workman that his leave on
medical ground was not sanctioned as his applications were not supported by
medical certificates and that he was liable to be treated as an
unauthorised absentee. The workman was, therefore, called upon to submit
his explanation, if any, within 15 days of receipt of the letter. In reply
thereto workman stated "baldly" that he was suffering from chest plain for
quite some time and that he had consulted a specialist outside HPC for
personal reasons and that medical certificate would be produced at the time
of this joining. Under these circumstances Corporation passed order date
January 5, 1989. Workman approached the Gauhati High Court, which set aside
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the order of the Corpo-ration and directed reinstatement of the workman
with 50 per cent back wages. This led the Corporation to come to this
Court. This Court said that from the record that the inference had to be
drawn that either the medical certificates
4. 23. Penalties -
(vi) Termination of Service
(E) loss of lien on his appointment by an employee,
(1) Proceeding on leave without prior sanction and remaining
unauthorisedly absent for more than 8 consecutive days
and/or
(2) Overstaying his sanctioned leave beyond originally granted or
subsequently extended for more than 8 consecutive days. . were not genuine
in the sense that they were not obtained then and there or the workman
deliberately did not disclose them along with the leave applica-tions and
that even before this Court no proper explanation was forthcoming from the
workman on that aspect. It was, however, conceded by the Corpo-ration that
Rule 23(vi)(E) had to be construed by reading into it the principles of
natural justice. This Court then did not hold the Rule to be ultra vires
Article 14 of the Constitution and said :
"12. We consider that in view of this concession made by the learned
counsel on behalf of the appellant-Corporation that the said Rule must be
read and given effect to, subject to the compliance of the principles on
natural justice, it cannot be said that the Rule is arbitrary or
unreasonable or ultra vires Article 14 of the Constitution. In other words,
before taking action under the said clause, an opportunity should be given
to the employee to show cause against the action proposed and if the cause
shown by the employees is good and acceptable, it follows that no action in
terms of the said clause will be taken. Understood in this sense, it cannot
be said that the said clause is either unreasonable or violative of
"Article 16 of the Constitution."
Then this Court held :
"15. We have extracted Rule 23 in full. The explanation to the Rule
specifically states that certain items enumerated thereunder shall not be
treated as a penalty at all within the meaning of Rule 23. For our case the
relevant sub-clause is (vi)(E) which says that proceeding on leave without
prior sanction and remaining unauthorisedly absent for more than 8
consecutive days; and/or overstaying his sanctioned leave beyond the period
originally granted or subsequently extended for more than 8 consecutive day
would result in loss of lien of the appointment of the employees. In this
case we have seen that the first respondent had proceeded on leave without
prior sanction and remained unauthorisedly absent for more than 6 months
consecutively which obliged the appellant-Corporation to issue
communication to the first respondent calling upon him to explain.
Unfortunately, the first respondent, for reasons best known to him, has not
availed himself of the opportunity as seen earlier but replied in a half-
hearted way which resulted in the impugned order. Therefore, under the
circumstances, it cannot be said that the principles of natural justice
have not been complied with or the circumstances require any enquiry as
contemplated under Rule 25."
This Court was thus of the view that there "was no good reason for the High
Court to interfere with the impugned order of the appellant-Corporation
dated January 5, 1989".
In Uptron India Ltd. v. Shammi Bhan and Another, [1998] 6 SCC 538, workman
was permanent employee of the appellant. On November, 7, 1984 she proceeded
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and remained till January 29, 1985 on maternity leave. Thereafter she
allegedly remained absent with effect from January 30, 1985 till April 12,
1985 without any application for leave and consequently by order dated
April 12, 1985 appellant informed the workman that her services stood
automatically terminated in terms of Clause 17(g)6of the Certified Standing
Orders. This Court, where one of us (Saghir Ahmad, J.) was a party, said :
"Clause 17(g), which has been extracted above, Significantly does not say
that the services of a workman who overstays the leave for more than seven
days shall stand automatically terminated. What it says is that "the
services are liable to automatic termination". This provision, therefore,
confers a discretion upon the management to terminate or not to terminate
the services of an employee who overstays the leave. It is obvious that
this discretion cannot be exercised, or permitted to be exercised
capriciously. The discretion has to be based on an objective consideration
of all the circumstances and material which may be available on record.
What are the circumstances which compelled the employee to proceed on
leave; why he overstayed the leave; was there any just and reasonable cause
for overstaying the leave; whether he gave any further application for
extension for leave; whether any medical certificate was sent if he had, in
the meantime, fallen ill? These arc questions which would naturally arise
while deciding to terminate the services of the employee for overstaying
the leave. Who would answer these questions and who would furnish the
material to enable the management to decide whether to terminate or not to
terminate the services are against questions which have an answer inherent
in the provision itself, namely, that the employee
6. 17(g) The services of a workman are liable to automatic termination if
he overstays on leave without permission for more than seven days. In case
of sickness, the medical certificate must be submitted within a week
against whom action on the basis of this provision is proposed to be taken
must be given an opportunity of hearing. The principles of natural justice,
which have to be read into the offending clause, must be complied with and
the employee must be informed of the grounds for which action was proposed
to be taken against him for overstaying the leave."
In Bharat Forge Co. Ltd. v. A.B. Zodge and Another, [1996] 4 SCC 374, the
management was denied to by the Industrial Tribunal to lead evidence in
support of the impugned order of dismissal. It was not disputed that the
request was made before the closure of the proceedings before the Tribunal.
This Court held :
"A domestic inquiry may be vitiated either for non-compliance of rules of
natural justice or for perversity. Disciplinary action taken on the basis
of a vitiated enquiry does not stand on a better footing than a
disciplinary action with no enquiry. The right of the employer to adduce
evidence in both the situations is well recognised. So the employer is
entitled to adduce evidences, for the first time, before the Tribunal even
if the employer had held no inquiry or the inquiry held by the employer is
found to be perverse."
Two principles emerge from the decision (1) principles of natural justice
and duty to act in just, fair and reasonable manner have to be read in
Certified Standing Orders which have statutory force. These can be applied
by Labour Court and Industrial Tribunal even to relations between
management and workman though based on contractual obligation; and (2)
where domestic inquiry was not held or it was vitiated or some reason the
Tribunal or Court adjudicating an industrial dispute can itself go into the
question raised before it on the basis of the evidence and other material
on record.
In the present case action was taken by the Bank under Clause 16 of the
Bipartite Settlement. It is not disputed that Dayananda absented himself
from the work for a period of 90 or more consecutive days. It was
thereafter that the Bank served a notice on him calling upon to report for
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duty within 30 days of the notice stating therein the grounds for the Bank
to come to be conclusion that Dayananda had no intention of joining duties.
Dayananda did not respond to the notice at all. On the expiry of the notice
period Bank passed orders that Dayananda had voluntarily retired from the
service of the Bank. Now what are the requirements of principles of natural
justice, which are required to be observed? These are : (1) workman should
know the nature of the complaint or accusation; (2) an opportunity to state
his case; and (3) the management should act in good faith which means that
the action of the management should be fair, reasonable and just. All these
three criteria have been fully met in the present case. Principles of
natural justice are inbuilt in Clause 16 of the Bipartite Settlement. When
evidence was led before the Tribunal, Bank produced the registered covers,
which had been received back with the endorsement "refused" and the
addressee "not found during delivery time". Dayananda said he never refused
to receive the notice. In these circumstances Tribunal thought in necessary
to hold that notice was not served on Dayananda as the Bank did not examine
the postman. The notice was sent on the correct address of Dayananda and it
was received back with the postal endorsement "refused". A clear
presumption arose in favour of the Bank and against Dayananda. Yet the
Tribunal held that no notice was given to Dayananda as postman was not
produced by the Bank. This appears to us to be rather an incongruous
finding by the Tribunal. Unfortunately, High Court did not go into this
question at all. Considering the conduct of Dayananda all this period and
after three years of his having voluntarily retired from the Bank in terms
of Clause 16 of the Bipartite Settlement his statement that he did not
receive the notice was a sheer lie. His whole edifice was built on
falsehood and yet the Tribunal was there to give him relief on the platter
though at the same time criticised his conduct during his employment with
the Bank.
It is no point laying stress on the principles of natural justice without
understanding their scope or real meaning. There are two essential elements
of natural’ justice which are : (a) no man shall be judge in his own cause;
and (b) no man shall be condemned, either civilly or criminally, without
being afforded an opportunity of being heard in answer to the charge made
against him. In course of time by various judicial pronouncements these two
principles of natural justice have been expanded, e.g., a party must have
due notice when the Tribunal will proceed; Tribunal should not act on
irrelevant evidence or shut out relevant evidence; if the Tribunal consists
of several members they all must sit together at all times; Tribunal should
act independently and should not be biased against any party; its action
should be based on good faith and order and should act in just, fair and
reasonable manner. These in fact are the extensions or refinements of the
main principles of natural justice stated above. Bank has followed the
requirements of Clause 16 of the Bipartite Settlement. It rightly held that
Dayananda had voluntarily retired from the service of the Bank. Under these
circumstances it was not necessary for the Bank to hold any inquiry before
passing the order. An inquiry would have been necessary if Dayananda had
submitted his explanation which was not acceptable to the Bank or contended
that he did report for duty but was not allowed to joint by the Bank.
Nothing of the like has happened here. Assuming for a moment that inquiry
was necessitated, evidence led before the Tribunal clearly showed that
notice was given to Dayananda and it is he who defaulted and offered no
explanation of his absence from duty and did not report for duty within 30
days the notice as required in Clause 16 of the Bipartite Settlement.
This undue reliance on the principles of natural justice by the Tribunal
and even by the High Court has certainly led to miscarriage of justice as
far as Bank is concerned. Conduct of Dayananda as an employee of the Bank
has been astounding. It was not a case where the Tribunal should have given
any relief to Dayananda and yet the Bank was directed to reinstate him with
continuity of service and mercifully the latter part of the relief High
Court struck down. There was no occasion for the Tribunal to direct that
Dayananda be reinstated in service or for the High Court not to have
exercised its jurisdiction under Article 226 of the Constitution to set
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aside the Award.
We, therefore, allow the appeal, set aside the impugned judgment of the
High Court and also the Award dated September 26, 1994 of the Central
Government Industrial Tribunal.
High Court had noticed that since September 26, 1994 Dayananda had been
paid wages in terms of Section 17-B of the Industrial Disputes Act, 1947.
When the matter came to this Court on special leave petition, while issuing
notice on February 8, 1999 it was ordered "Statute quo regarding implemen-
tation of the order of the High Court as existing today to continue till
further orders". It is not clear how long Dayananda has been paid his
wages. Even though we have set aside the order of the Tribunal we direct
that the wages so far paid to Dayananda be neither recorded nor adjusted by
the Bank. However, there shall be no order as to costs.